Larry Hines v. D.K. Sisto*Fn1

December 17, 2010

LARRY HINES, PETITIONER,v.D.K. SISTO*FN1 , RESPONDENT.

FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, Larry Hines, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate sentence of thirty-six years to life following his 1981 guilty plea to forcible rape with a penalty enhancement for use of a deadly weapon and his 1982 jury conviction for first degree murder with penalty enhancements for use of a deadly weapon and a prior violent felony conviction. Here, Petitioner does not challenge the constitutionality of his convictions, but rather, the execution of his sentence, and specifically, the February 14, 2007 decision by the Board of Parole Hearings (the "Board") finding him unsuitable for parole.

II. ISSUES PRESENTED

Petitioner alleges two grounds for relief in his pending petition. Specifically, Petitioner's claims are as follows:

(1) The Board of Parole Hearings' decision to delay setting Petitioner's parole release date was not supported by any relevant, reliable evidence in the record that he currently poses an unreasonable risk of danger to society and was arbitrary, in violation of Petitioner's right to due process of law under the Fifth and Fourteenth Amendments.

(2) The Board of Parole Hearings' unsuitability factors are unconstitutional.

After careful consideration of the record and applicable law, it is recommended that this petition for writ of habeas corpus relief be denied.

III. FACTUAL BACKGROUND

The basic facts of Petitioner's July 7, 1980 crime were summarized in the probation officer's April 1981 pre-sentencing investigation report as follows:

[A]t approximately 4:00 P.M. the victim, Debra Dobson, was waiting for a bus near the corner of 97th street and Graham Avenue in the City of Los Angeles. She was approached by the defendant and they began talking. They then walked to Jordan Downs Project and the victim purchased some "Shermans." This refers to PCP laced Sherman cigarettes. The defendant and the victim were then driven by two men back to 97th Street and Graham Avenue where the defendant and the victim exited the vehicle. The defendant and the two men in the car had smoked the phencyclidine laced cigarette. After the car left the defendant and the victim were standing on a corner when the defendant suddenly grabbed the victim's right arm and told her he needed a woman to go with him to buy an ounce of "juice" and pawn a watch. She refused and he released her arm. He then began walking back and forth and again grabbed her arm and pointed to an abandoned apartment house which was on blocks having just been moved to the location. The victim refused and the defendant again released her arm. He then told her to follow him and she followed him to an alley between Graham Avenue and Beach Street. The victim then walked back to the bus stop but realized she had missed her bus. The defendant then returned to her location and then again grabbed her arm and pulled her in the direction of the alley. She then freed her arm and was able to freely follow the defendant. As they neared the apartment building which was up on blocks the defendant grabbed her without warning and placed a choke hold on her with his right arm. As she attempted to scream, the defendant stated, "Shut your damn mouth[,] bitch." He attempted to push her to the ground but she resisted. He then put his weight upon her back and forced her onto the ground. As the victim attempted to scream and struggle the defendant told her he would take his knife out and reach[ed] towards his pants pocket. He then continued to pull her pants off. The defendant then lifted the victim off the ground and picked up a brick. He told her that he would hit her with the brick if she continued to holler. They walked down the alley with the defendant holding the victim by the back of her neck. He placed the brick along the left side of her face. They then entered the apartment building which was abandoned and up on blocks and the defendant then raped the victim while holding the brick and threatening to hit her with it. The defendant then raped her a second time. The victim then began to put on her clothes and the defendant told her he was going to rape her again. She began crying and the defendant started combing her hair. He then threw the brick away and led her back through the openings and out of the building. They then parted company and the victim received a ride home from a passer-by. She explained to this passer-by she had been raped and when she arrived home she told her mother what had happened. Police Officers were called and a report was taken. On July 10, 1980, at approximately 6:30 P.M. the victim flagged down a patrol car and indicated she had just seen the man who had raped her a few days earlier. The officers entered Jordan Downs Housing Projects where the victim identified the defendant and he was arrested. . .

DEFENDANT'S STATEMENT

The defendant has failed to supply this officer with a written statement of the facts surrounding his arrest. His right to submit a written statement was explained to him. Verbally he indicates he had been to court earlier in the morning and went to the liquor store on his way home when he saw the victim. He started talking to her and asked her if she could buy some Sherman cigarettes for him and she agreed. They went to a house where they thought they could buy some "Sherms" but there was no one there. They met some men on the street and got in the car with them and drove to Jordan Downs. The victim then bought four one-half Sherman cigarettes and they all went to her front yard and smoked some Shermans. The two men they had met then took them to the bus stop where the victim and the defendant got out of the car. The victim said she was broke and that she needed some money for the bus and her child. She suggested they go to a motel where the defendant could pay her for sex. The defendant explained he had no money for a motel and she suggested they go into the abandoned house. They went into the abandoned house and had intercourse. The defendant denies ever using force or threats of force in order to complete the act of intercourse. Two days later he was arrested and accused of raping the victim. (Pet. Ex. A at 6-9.) The District Attorney charged Petitioner with kidnapping with penalty enhancements for use of a deadly weapon and for a prior felony conviction. In addition, Petitioner was charged with two counts of rape with penalty enhancements for use of a deadly weapon and prior felony conviction. On March 17, 1981, Petitioner entered a guilty plea to the rape charge with a penalty enhancement for use of a firearm, and in exchange, Petitioner was promised no more than seven years incarceration. All other charges were continued to the probation and sentencing hearing. While defendant was out on bail awaiting sentencing on the rape charge, he committed another offense, described in the probation officer's August 1982 pre-sentencing investigation report as follows:

On March 31, 1981, witnesses who were neighbors of the deceased victim, Rebecca Booker, established that the victim had been alive about 9:00 P.M. on that date. While inside the house, a witness observed two television sets, one located in the living room, and the other, a portable type, located in the bedroom. Witness, upon leaving the decedent's house, observed her to be in good health, having no bruises or marks on her body. The following day, April 1, 1981, witness had gone to the victim's home at 11:30 in the morning to advise her she would pay her some money she owed her. Witness knocked on the door and witness's children had told her earlier that the victim was home, having not seen her leave. Witness knocked on the door and called her name; however, there was no answer. Witness then looked through the mail slot, and observed something which appeared to be blankets lying on the floor.

At the time the deceased was killed, Calvin Wallace had been living with the decedent approximately one year at 9724 Evers Street. Mr. Wallace had keys that fit the house, including one key which fit the back door. A steel door covers the wooden door entering the rear of the home, to which Mr. Wallace had one key for the steel door only. All of the windows of the home were covered with steel bars.

On March 26, 1981, in the evening hours, witness Calvin Wallace was stopped for drunk driving, and after his arrest, the witness gave defendant his keys to take his car home to the victim decedent, Rebecca Booker. The keys which he gave the defendant also contained the key to the security door of the house. Witness Wallace was in custody for 90 days subsequent to his arrest for drunk driving, with the exception of a period of seven days when he was out of custody to attend the funeral of his girlfriend. In view of Mr. Wallace's live-in relationship with the decedent, he was able to attest to the fact that three televisions were located in the victim's home, including a floor model television in the living room, a portable model in the bedroom, which had a broken antenna, and a third model located in the kitchen. In addition, the victim owned a Polaroid camera, as well as a small pocket camera. The witness, Wallace, owned a ten-speed, maroon sturdy bicycle. Upon witness Wallace's return to his and the decedent's home, he discovered property missing, which included a .38 snub-nosed revolver, two of the televisions, the two cameras and binoculars. Additionally, witness Wallace's own personal bicycle was missing.

On April 1, 1981, Los Angeles police officers were called to the location of 9724 Evers Street, Los Angeles, at 2:00 P.M., regarding a possible death. Upon officers' arrival, and inspection of the location, they observed no forced entry to the building, and all of the doors and windows were intact, which had been secured by iron bars. The front door was unlocked, including both the wooden and security door. The victim was observed in a prone position, face down on the living room floor and there appeared to be no sign of life. There were lacerations to the left throat area of the victim's neck, and it appeared to be a deep wound. Blood at the scene was located directly beneath the cut on the throat of the victim. The victim appeared to be wearing a light pink robe with red trim, and draped across her right leg was a black jacket with the identification "Cal State, LA" on the left breast of the jacket. Next to the victim's right leg was also a pink pajama bottom which was not on the body. Officer was able to observe bloodstains around the body, and the victim's hair was messed and there were three hair rollers in the front part of the victim's hair. Upon walking through the location, officer observed one television in the front room which was of a console-type.

On April 1, 1981, sometime between ten and 12 in the morning, witness Leon Hughes, Jr, who had previously been acquainted with the defendant, observed the defendant on a ten-speed bicycle which appeared to be brown in color. The defendant was carrying a pair of binoculars and a camera, the camera appeared to be a Polaroid. The defendant approached witness Hughes and asked if he was interested in the bike or the camera or the binoculars, as they were for sale. The witness stated he was not, and then defendant left on the bicycle, taking the property with him. Witness saw him again later in the day, at approximately 3:00 P.M., across the street, and at this time the defendant was in the back of a pickup truck, and he had a television set in his arms, and started to walk toward witness Hughes. Defendant then offered to sell the television set to the witness for $20, and witness bought it. Witness kept the television set for a couple of weeks, after which time the police came and took it. The television set had a broken antenna.

On March 31, 1981, witness Pamela Rene Pitts was at the home of her grandmother on Bandera Street. Witness Pitts, who had known the defendant for approximately two years, and during which time witness Pitts and the defendant were previously involved in a romantic relationship. Witness Pitts' sister is Wanda Taylor, who at the time of the present offense was married to the defendant. On March 31, 1981, when the defendant was at witness Pitts' grandmother's home, he was wearing jeans and a tee-shirt, and was wearing a black jacket with the words "Cal State, LA" on it. He stayed for a short period of time, and then left the location, returning about 10:30 or 11:00 P.M., and was wearing overalls, but did not have on the jacket. When he returned to the house, he was carrying a camera and some binoculars, the camera appearing to be a Polaroid-type camera. Witness Pitts went to bed about 12:30 P.M., and when she did so, the defendant was still in the house. Upon awakening the following morning, about 6:30 A.M, the defendant was gone. She later saw him, about 11:00 A.M. on April 1, 1981, and upon arriving at the grandmother's residence, was wearing a shirt and some jeans, and witness was able to observe some bloodstains on the sleeve of the shirt he was wearing. The bloodstains appeared to be dry. When witness asked him about the bloodstains, the defendant rolled his sleeve up. The defendant left the grandmother's house about 11:30 A.M., and then witness saw him later on in the day, about 2:00 P.M., and when he arrived at the grandmother's residence, he did so on a ten-speed bicycle which witness knew belonged to Calvin Wallace.

DEFENDANT'S STATEMENT:

To date of dictation, defendant has not provided a written account.

Defendant was interviewed in local custody, where he orally related, "Just the jury says it was my sweater near the body . . . I just got a raw deal." "I had nothing to do with it, but I did have the camera, the binoculars . . . I got them from another guy who asked if I could sell the stuff.

I sold them at the liquor store for $50. I borrowed the bicycle from the same friend . . . they say the bike I was riding and all this stuff came from the deceased's house. I don't know the deceased." "I did have the sweater, I didn't kill no damn body." (Pet. Ex. C at 6-11.) On May 21, 1981, Petitioner was sentenced to a determinate term of seven years in prison on the rape charge and related penalty enhancements. On August 4, 1982, following a jury trial on the second set of charges, Petitioner was convicted of first degree murder with penalty enhancements for use of a deadly weapon and a prior violent felony conviction. Petitioner was sentenced on September 28, 1982 to an indeterminate term of twenty-nine years to life in prison with the possibility of parole. This sentence was to be served consecutively to the seven year sentence that Petitioner was already serving due to the aggravated nature of the crime, his extensive adult and juvenile criminal record, history of violent conduct, and the fact that the murder was committed while Petitioner was pending sentencing on the rape charges. Petitioner was received by the California Department of Corrections on October 4, 1982. His life term began on June 27, 1986, and his minimum eligible parole date passed on January 22, 2003. Petitioner was denied parole for a period of four years at his initial parole suitability hearing on February 28, 2002. Petitioner appeared before the Board for his first subsequent parole suitability hearing on February 14, 2007. After considering numerous positive and negative suitability factors, the panel concluded that Petitioner remained an unreasonable risk of danger to society, and thus he was not suitable for parole. Petitioner sought habeas corpus relief in the Los Angeles County Superior Court. On February 5, 2008, the court denied his petition, finding that the Board's determination that Petitioner was unsuitable for parole was supported by some evidence in the record. The California Court of Appeal, Second Appellate District and the California Supreme Court both denied habeas corpus relief without comment. Petitioner filed this federal petitioner for writ of habeas corpus on June 20, 2008. Respondent filed an answer on May 19, 2009, and Petitioner filed his traverse on June 2, 2009.

IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW

This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an 7 unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. &sect; 2254(d). See also Penry v. Johnson, 531 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or ...

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